Mohd.Osman Ali Khan.Hyd.And2 Others v. Mohd.Waheed Ali Khan.Hkyd.Andanother

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY C.C.C.A. Nos.280 & 282 of 2002 COMMON JUDGMENT:

All these three City Civil Court Appeals are arising out of a common judgment and decree dated 13.09.2002 in Original Suit (O.S.) Nos.890, 1323 and 1325 of 1997 on the file of the VII Senior Civil Judge, City Civil Court at Hyderabad, between the same parties. Accordingly, it is proposed to dispose of all these appeal suits, through this common judgment.

2.

CCCA No.280 of 2002 is arising out of O.S.No.1323 of 1997 filed by the appellants/defendants, CCCA No.282 of 2002 is against the judgment and decree in OS No.1325 of 1997 filed by the appellants/defendants, whereas CCCA No.83 of 2003 is filed by the appellants/ plaintiffs assailing the common judgment and decree dated 13.09.2002 in O.S.No.890 of 1997.

3.

The plaintiffs in O.S.No.890 of 1997 have filed a suit for partition and separate possession of their share in

the house bearing Nos.23-1-145 and 23-1-146 situated at Dood Khana Allah Rahi Begum, Kotla Alijah, Hyderabad, admeasuring 178.57 and 102.83 square yards respectively (hereinafter referred to as "suit schedule property"). Whereas, the plaintiffs in O.S.Nos.1323 and 325 of 1997 have filed the suits for declaration and delivery of possession in respect of house bearing Nos.23-1-146 and 23-1-145 respectively, which are suit schedule properties. The trial Court has recorded the common evidence in the lead suit in O.S.No.890 of 1997 and recorded findings on all the issues through this common judgment.

Pleadings in O.S.No.890 of 1997:

4.

The plaintiffs 1 to 3 have filed O.S.No.890 of 1997 for partition and separate possession of the suit schedule properties against defendants 1 to 5 alleging that plaintiffs 1 to 3 and defendants 2 and 3 are the brothers and the first defendant is their mother, defendants 4 and 5 are their sisters and they are the legal heirs of one Mohd. Shujath Ali Khan, who died intestate in the year 1958 at Hyderabad. Late Shujath Ali Khan purchased the two suit

schedule houses. All the plaintiffs are residing in the said houses since the purchase i.e., more than 47 years. During the life time of deceased-Shujath Ali Khan and after his death, the suit schedule houses are continued on his name only. Therefore, they are matruka properties, liable to be divided among the plaintiffs and defendants. The defendants 1 and 2 have adopted indifferent attitude and started threatening the plaintiffs to dispossess them from the suit schedule houses as if the plaintiffs are residing at the mercy of defendants 1 and 2. As such, a panchayat was held in the presence of elders on 03.06.1997, but it did not yield any fruits. Thereafter, all of a sudden on 10.06.

1997 defendants 1 and 2 have got issued a legal notice to the plaintiffs claiming their ownership with a fabricated document calling upon the plaintiffs to vacate the suit houses within seven days and to hand over the vacant possession. The plaintiffs having received the said notice on 15.06.

partition and separate possession of their share in the suit schedule property.

5.

The defendants 1 and 2 have filed a detailed written statement alleging that the suit schedule houses are not the matruka properties. The plaintiffs are only residing in the suit houses being the son of the first defendant. The first defendant who is mother of plaintiffs and defendants 2 to 5 has purchased the house bearing No.23-1-145 under registered sale deed document No.190 of 1950 and house bearing No.23-1-146 under registered sale deed document No.189 of 1950 and subsequently she has sold and delivered the possession of house No.23-1145 to the second defendant under registered sale deed document No.84 of 1985. Thereafter, she gave house No.23-1-146 by way of gift and handed over the possession of the same to the second defendant on 05.04.1996. She has also executed a memorandum of oral gift on 18.04.1996. Accordingly, the suit houses are not the properties of late Mohd. Shujath Ali Khan, they are not matruka properties of the plaintiffs and defendants, not

liable to be divided among them, the second defendant has purchased one house and another house was gifted to him by the mother of the parties to the suit through oral gift, which was later confirmed through memorandum of oral gift, as such the second defendant is the owner and possessor of both the houses. The plaintiffs are only in permissive possession of the suit houses. No such meeting was held either on 13.06.1997 or any other subsequent day. Further, the first plaintiff is one of the attesting witnesses to the sale deed executed by the first defendant in favour of the second defendant, which shows that the plaintiffs have got knowledge about the same and also the gift and intentionally filed a false suit.

Pleadings in O.S.No.1323 of 1997:

6.

The defendants 1 and 2 in O.S.No.890 of 1997 are the plaintiffs 1 and 2 in O.S.No.1323 of 1997 and the suit was filed against defendants 1 to 3, who are the plaintiffs in O.S.No.890 of 1997. This suit is filed for declaration and delivery of possession of suit schedule property - house bearing No.23-1-146 alleging that the

second plaintiff was the owner and possessor of the said house. Having purchased the same under registered sale deed document No.190 of 1950 she in consideration of love and affection has orally gifted the suit house to the first plaintiff on 05.04.1996 and he accepted the same, possession was also delivered to him on the same day. Thereafter, the second plaintiff also executed a memorandum of oral gift dated 18.04.1996. The second plaintiff and defendants were permitted by the first plaintiff to stay in his adjacent house bearing No.23-1-145 as permissive possessors along with their family members, as the first plaintiff was going to Saudi Arabia. During the stay of first plaintiff at Saudi Arabia, the defendants have compelled the second plaintiff and family members of first plaintiff to leave the said house bearing No.

23-1-145 and occupied the same, taking undue advantage of a door in between both the houses. The first plaintiff after returning to Hyderabad visited the house and demanded the defendants to vacate the same, but the defendants have refused to vacate the same.

the rate of Rs.1,350/- per month towards past mesne profits and Rs.50/- per day towards future mesne profits. 7.

The defendants 1 to 3 in O.S.No.1323 of 1997 have filed a written statement, denying the plaint averments therein alleging that the suit house, which is a part of suit schedule property, is the matruka property, the defendants have already filed O.S.No.890 of 1997 for partition and it is only after the said suit was filed, as a counter blast the present suit is filed. Late Shujath Ali Khan has purchased the suit schedule property in the year 1950. However, it was registered on the name of second plaintiff. It is a matruka property, liable for partition. The first plaintiff has no right or interest to evict the defendants as they are living in the suit schedule houses on their own right as co-owners and lawful possessors, accordingly, prayed for dismissal of the suit for declaration and recovery of possession.

Pleadings in O.S.No.1325 of 1997:

8.

The plaintiffs 1 and 2 in this suit are the defendants 1 and 2 in O.S.No.890 of 1997 and it is filed

against defendants 1 to 3, who are the plaintiffs in O.S.No.89 of 1997, for declaration, recovery of possession of the suit schedule property and also for future mesne profits. It is alleged in the plaint that the second plaintiff was the owner of the house bearing No.23-1-145 [old house No.498/3 (oldest No.5473)] as per the registered sale deed No.189 of 1950, she was in possession of the said house and she has sold it to the first plaintiff who is her son as per the registered sale deed document No.84 of 1985 and delivered possession of the same to him. However, he permitted the second plaintiff and all the defendants who are the mother and brothers to stay in the suit house as permissive possessors along with his family members.

During the absence of first plaintiff, the defendants started troubling the second plaintiff and the family members of the first plaintiff, compelled them to leave the house, as such on 29.05.1997, the first plaintiff went to the suit house and demanded the defendants to vacate the same by cancelling the permission granted in their favour and to hand over the vacant possession, but the defendants have refused to vacate the same.

pay past mesne profits and future profits at the rate of Rs.50/- per day, the first plaintiff has also got issued a legal notice dated 10.06.1997 demanding the defendants to vacate the suit schedule property, finally filed the suit for declaration, recovery of possession and past mesne profits at Rs.1,350/- per month and future mesne profits at Rs.50/- per day.

9.

The defendants 1 to 3 filed the written statement denying the plaint averments alleging that the second plaintiff is not the owner of suit schedule property and she has no right to sell the same to the first plaintiff. Both the transactions in respect of suit houses are false and they were got into existence only to deprive the plaintiffs from their lawful right over the suit property, which is a matruka property purchased by the father of defendants and first plaintiff. Late father of the plaintiff and first defendant died in the year 1958 leaving behind his legal heirs. Hence, it is a matruka property. Accordingly, the defendants herein have filed a partition suit in OS No.890 of 1997, and only to coerce, pressurize

the defendants, the present suit is filed. The defendants were not in permissive possession of the suit schedule houses at any point of time and prayed for dismissal of the suit.

Issues:

10.

Basing on the above pleadings in O.S.Nos.890, 2323 and 2325 of 1997 respectively, the following issues were settled by the trial Court:

a) O.S.No.890 of 1997:

i) Whether the suit properties are matruka properties of late Shujat Ali Khan?

ii) Whether the suit is bad for non-joinder of necessary parties?

iii) Whether the Gift get up by D-2 are true valid and binding?

iv) Whether the suit as framed is maintainable?

v) To what relief?

b) O.S.No.2323 of 1997:

i) Whether the suit property is Matruka property of late Mohd. Shujath Ali Khan?

ii) Whether Gift and the Memorandum of Gift, dt.18-4-96 by second plaintiff in favour of 1st plaintiff is true, valid and binding on the defendants?

iii) Whether the plaintiffs are entitled for declaration and possession?

iv) Whether the plaintiffs are entitled for past mesne profits of Rs.1,350/-?

v) Whether the plaintiffs are entitled for future mesne profits?

vi) To what relief?

c) O.S.No.2325 of 1997:

i) Whether the suit property is matruka property of late Mohd. Shujath Alikhan?

ii) Whether the sale of the suit house by the second plaintiff in favour of the 1st plaintiff is true, valid and binding on the defendants?

iii) Whether the plaintiffs are entitled for declaration and possession?

iv) Whether the plaintiffs are entitled for Rs.1,350/- towards past mesne profits?

v) Whether the plaintiffs are entitled for future mesne profits?

vi) To what relief?

Evidence and findings of the trial Court:

11.

During trial, before the trial Court on behalf of the plaintiffs in O.S.No.890 of 1997, in all PWs.1 and 2 are examined. Exs.A.1 to A.13 documents are marked. After closure of plaintiffs' evidence, on behalf of the defendants in O.S.No.890 of 1997, DWs.1 and 2 are examined, Exs.B.1 to B.10 documents are marked and reported closure of their evidence. The learned judge of the trial Court on

careful appreciation of the oral and documentary evidence available on record dismissed the suit for partition in O.S.No.890 of 1997 in respect of the suit schedule property. Whereas, the suits in O.S.Nos.1323 and 1325 of 1997 filed by the plaintiffs therein (who are the defendants 1 & 2 in O.S.No.890 of 1997) were decreed declaring that the first plaintiff is the owner of suit schedule property and the defendants were directed to deliver the vacant possession of the same within two months from the date of judgment. In respect of the claim of past and future mesne profits, the plaintiffs were advised to file separate application before the competent court.

12.

Feeling aggrieved by the said judgment and decree, the present three appeal suits are filed by the plaintiffs in O.S.No.890 of 1997 and the defendants in O.S.Nos.1323 and 1325 of 1997.

13.

Heard the learned counsel for the appellants and the respondents. The submissions made by them have received due consideration of this Court.

14.

Since the evidence was only adduced in O.S.

No.890 of 1997, a comprehensive suit for partition and for the sake of convenience, the parties are referred to as plaintiffs and defendants as arrayed in the original suit No.890 of 1997.

15.

In the light of the rival contentions and the submissions made on either side, the following points would arise for consideration:

i) Whether the suit schedule properties are matruka properties of the parties to the suit and the pleadings in O.S.No.890 of 1997 are entitled for partition and separate possession of their share as prayed for?

ii) Whether the plaintiffs in O.S.Nos.1323 and O.S.No.1325 of are entitled for declaration and recovery of possession as prayed for?

iii) Whether the common judgment and decree dated 13.09.2002 is sustainable?

iv) To what relief?

Point Nos.(i) to (iv):

16.

Since the point Nos.(i) to (iv) are inter-related, to avoid repetition and for the sake of brevity, it is proposed to answer all the points together as under:

17.

The admitted or undisputed facts of these three cases are that plaintiffs 1 to 3 and defendants 2 & 3 are the sons, defendants 4 & 5 are the daughters of late Mohd. Shujath Ali Khan and the first defendant. The plaintiffs and the first defendant and the family members of second defendant were living in separate portions of the suit schedule property.

18.

The case of the plaintiffs is that the suit schedule properties are matruka properties purchased by their late father-Mohd. Shjath Ali Khan, but the sale deed was obtained on the name of their mother-first defendant. The plaintiffs, defendants 1 to 3 are entitled for their share in the suit schedule property. However, to defeat the rights of the plaintiffs, defendants 1 & 2 clandestinely created a sale deed, memorandum of oral gift in favour of the second defendant in respect of the suit schedule houses and that

they are not binding on the other parties to the suit and that the plaintiffs are entitled for partition and separate possession of their share.

19.

The case of the contesting defendants is that the first defendant has purchased the property under Exs.B.1 and B.3 from out of her own funds. Thereafter, she sold one of the houses to the second defendant under Ex.B.5 and also gifted another house orally in favour of the second defendant. Subsequently, memorandum of oral gift was executed as in Ex.B.6. However, at the request of first defendant, the second defendant has allowed the plaintiffs and first defendant to stay in the suit houses along with his family members and with a mala fide intention, the plaintiffs started claiming the suit houses and also caused inconvenience to the family members of the second defendant.

20.

The trial Court on a careful appreciation of entire evidence answered issue No.1 in O.S.No.890 of 1997 and O.S.Nos.1323 and 1325 of 1997 together holding that the plaintiffs in O.S.No.890 of 1997 are not entitled for

partition of the suit schedule houses. Whereas, the plaintiffs in O.S.Nos.1323 and 1325 of 1997 are entitled for declaration and recovery of possession. Thus, the issue No.1 in all the above suits was answered in favour of the defendants and against the plaintiffs in O.S.No.890 of 1997.

21.

Similarly, issue No.3 in O.S.No.890 of 1997 and issue No.2 in O.S.No.1323 of 1997 with reference to oral gift set up by the defendant in respect of house bearing No.23-1-146 was answered in favour of plaintiffs in O.S.No.1323 of 1997 and against the plaintiffs in O.S.No.890 of 1997 holding that the second plaintiff in O.S.No.1323 of 1997 has orally gifted house No.23-1-146 in favour of the first plaintiff therein. Issue No.2 in O.S.No.1325 of 1997 was answered in favour of plaintiffs therein holding that the sale of suit house by the second plaintiff in favour of the first plaintiff in that suit is true, valid and binding on the defendants. Accordingly, the first plaintiff in O.S.No.1325 of 1997 was declared as owner and entitled for recovery of possession.

22.

Similarly, issue No.3 in O.S.Nos.1323 and 1325 of 1997 was answered in favour of the plaintiffs, in those suits holding that the plaintiffs therein are entitled for declaration and recovery of possession. So also issue Nos. 2 and 4 in O.S.No.890 of 1997 were answered against the plaintiffs therein. Issue Nos.4 & 5 in O.S.Nos.1323 and 1325 of 1997 as to past and future mesne profits were answered holding that the plaintiffs are advised to file a separate petition before the competent court for giving a finding on payment of requisite fee. Accordingly, the suit for partition filed in O.S.No.890 of 1997 was dismissed, whereas the other suits in O.S.Nos.1323 and 1325 of 1997 for declaration of title and recovery of possession were decreed.

23.

Let me now examine the oral and documentary evidence adduced on behalf of the plaintiffs in O.S.No.890 of 1997. The plaintiff No.3 in O.S.No.890 of 1997 is examined as PW.1. In his evidence in chief examination, he has supported the plaint averments. In all Exs.A.1 to A.13 documents are marked in his evidence. Exs.A.1 to A.4

are notices and reply notices. Exs.A.5 to A.8, A.10 and A.11 are the valuation certificates in respect of the suit houses. Exs.A.9 and A.12 are the plans of both the suit houses, whereas Ex.A.13 is the telephone bill. Be it stated that out of 13 documents filed by the plaintiffs in none of the documents, their name is shown as owner of the suit schedule property.

24.

The plaintiffs have also examined Mir Ikramuddin Ali Khan as PW.2, an independent witness, who deposed that Mohd. Shujath Ali khan purchased the suit houses and that the suit schedule properties were not purchased by the first defendant with the support of her mother. The plaintiffs having pleaded that the suit houses are the matruka properties and that they were purchased by their father-late Mohd. Shujath Ali Khan, failed to file any piece of paper in support of their claim. The evidence of PWs.1 and 2 is not sufficient to discredit the documentary evidence adduced on behalf of defendants with reference to the title of DW.1 in respect of the suit schedule properties.

25.

On behalf of the contesting defendants, the first defendant in O.S.No.890 of 1997 is examined as DW.1, she is the mother of plaintiffs and defendants 2 to 5. She has supported the pleadings in the written statement in O.S.No.890 of 1997 and the pleadings in O.S.Nos.1323 and 1325 of 1997 on all aspects, whereas the second defendant in O.S.No.890 of 1997 is examined as DW.2. In the evidence of defendants, Exs.B.1 to B.10 documents are marked. Ex.B.1 is the original registered sale deed with a translated copy as in Ex.B.2, Ex.B.3 is another original registered sale deed, which is in Urdu along with translated copy as in Ex.B.4. Under the original sale deeds as in Exs.B.1 and B.3, DW.1 has purchased the suit schedule properties on her name in the year 1950.

Though the plaintiffs have claimed that they were purchased on the name of first defendant with the money paid by their late father Shujath Ali Khan, nothing is mentioned in the recitals of Exs.B.1 and B.3 to that effect. Ex.B.5 is the registered sale deed executed by DW.1 in favour of DW.2 in respect of one of the suit schedule houses. Whereas, Ex.B.6 is the memorandum of oral gift dated 18.04.

executed by DW.1 in favour of DW.2. Ex.B.7 is the mutation proceedings in favour of DW.2, Ex.B.8 is the electricity card issued on the name of DW.2 in respect of the suit schedule houses. Ex.B.9 is the tax receipt issued by the Municipal Corporation of Hyderabad (MCH) on the name of DW.2 in respect of the suit schedule property. Ex.B.10 is the extract of Assignment Register maintained by MCH.

26.

All these documents discussed above would clearly show that DW.1 has purchased the suit schedule property under the originals of Exs.B.1 and B.3, she was the possessor and owner of the same, she has executed Ex.B.5 registered sale deed in respect of one house, and orally gifted another house in favour of DW.2, subsequently the oral gift was reduced into writing as in Ex.B.6. One suit house was purchased on 07.01.1985 under Ex.B.5 and the oral gift was made, memorandum of oral gift was executed on 18.04.1996, on the basis of the same mutation was also effected as in Ex.B.7. Though DWs.1 and 2 were cross-examined at length by the learned counsel for the

plaintiffs in O.S.No.890 of 1997, nothing worth mentioning is elicited to discredit their evidence or to disbelieve the contents of Exs.B.1 to B.10 documents.

27.

The learned counsel for the plaintiffs in O.S.No.890 of 1997 contends that late Shujath Ali Khan has purchased property under Exs.B.1 and B.3 on the name of DW.1 and it is a benami transaction. The sale deed does not confer any valid title in respect of the suit schedule property in favour of DW.1. The learned counsel would further contends that there is no such oral gift by DW.1 in favour of DW.2 and Ex.B.6 is a fabricated document, brought into existence to suit the convenience of the defendants in O.S.No.890 of 1997 and that the plaintiffs in O.S.No.890 of 1997 are entitled for partition of the suit schedule property.

28.

In this context, I may refer to a recent decision of the Hon'ble Supreme Court of India in D.N. Joshi (dead) through Legal Representatives and others v. D.C. Harris

and another1. In this decision, while referring to its earlier judgment in Hafeeza Bibi v. Farid2, the Apex Court has dealt with the three essential aspects for a valid gift deed in respect of immovable property under Mohammadan Law. They are (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession.

29.

In the case on hand, as per the oral evidence of DWs.1 & 2 and the pleadings in the written statement, all the three essentials indicated above are established by the defendants. The trial Court has rightly appreciated the oral and documentary evidence available on record. The plaintiffs have failed to establish that the suit schedule property is matruka property and that Exs.B.1 and B.3 are nominal documents, they do not confer any title, right or interest in favour of DW.1, she cannot confer the same in favour of DW.2 under Ex.B.5 registered sale deed and 1 (2017) 12 SCC 624 2 (2011) 5 SCC 654

under oral gift which was reduced into memorandum as in Ex.B.6.

30.

Even assuming that late Shujath Ali Khan has paid the entire sale consideration and got the sale deeds executed on the name of DW.1 as in Exs.B.1 and B.3, the property was purchased by late Shujath Ali Khan only in the name of his wife/DW.1. The purchase of property by a person in the name of his wife or unmarried daughter is presumed unless otherwise rebutted to be the purchase made for the benefit of wife or unmarried daughter, as the case may be, thereby making the wife or unmarried daughter in whose name the property is purchased to be the real owner with the consequence that the property thus purchased shall not be construed to be a property held benami by such wife or the unmarried daughter for the husband or the father, as the case may be (Nand Kishore Mehra v. Sushila Mehra3).

3 AIR 1995 SC 2145

31.

The resultant position shall be that the wife or the unmarried daughter as the case may be shall be the absolute owner and the husband cannot claim title, as against the wife or unmarried daughter as the case may be, stating that he has paid the purchase money and only the name of his wife or unmarried daughter is incorporated. Therefore, because of the statutory presumption contained under sub-section (2) of Section 3 of the Prohibition of Benami Transactions Act, 1988 unless the contrary is proved that the purchase of the property by a person in the name of wife or unmarried daughter, as the case may be, shall be only for their benefit.

32.

Therefore, the burden is on the plaintiffs in O.S.No.890 of 1997 to rebut the presumption under Section 3 (2) of the Prohibition of Benami Transactions Act and to establish that it was a benami transaction. In other words, such person cannot succeed in the suit unless he proves that although he has purchased the property in the name of his wife, the same had not been purchased for her benefit.

33.

In the instant case, there is no such evidence available on record to discredit the recitals of Exs.B.1 and B.3. In addition to the recitals of Exs.B.1 and B.3, DW.1 was having her exclusive possession as per the municipal records, she has paid property tax on her own name and in the Assignment Register, her name is reflected. She has also executed Ex.B.5-registered sale deed and memorandum of oral gift as in Ex.B.6 in favour of DW.2, mutation was effected in the municipal records in respect of both the suit schedule houses. This documentary evidence clinches the entire issue.

34.

That apart, the oral evidence of DWs.1 & 2 appears to be more reliable and acceptable than the oral evidence of PWs.1 & 2. The original documents Ex.B.1 and B.3 are more than 30 years old by the time of marking, the presumption incorporated under Section 90 of Indian Evidence Act comes into operation in favour of the plaintiffs in respect of said documents. In addition to it, in view of the principles laid under Sections 91 & 92 of Evidence Act, such loose oral evidence of PWs.1 and 2 is

not sufficient to discredit or to disbelieve the contents of Exs.B.1 and B.3, the original registered sale deeds under which the first plaintiff has purchased the suit schedule property (Roop Kumar Vs. Mohan Thedani4).

35.

Thus, on overall consideration of the oral and documentary evidence adduced on both sides, the evidence adduced on behalf of defendants in O.S.No.890 of 1997 appears to be cogent, consistent, reliable and the trial Court has rightly relied upon such evidence and concluded that the plaintiffs in O.S.No.890 of 1997 are not entitled for partition and separate possession of the suit schedule properties and that the plaintiffs in O.S.Nos.1323 and 1325 of 1997 are entitled for declaration and recovery of possession. I do not find any irregularity or infirmity in the findings recorded by the trial Court on all the issues, in all the three suits stated above. Accordingly, the point Nos.(i) to (iv) are accordingly answered in favour of the defendants in O.S.No.890 of 1997 and the plaintiffs in O.S.Nos.1323 and 1325 of 1997 and against the plaintiffs in O.S.No.890 4 AIR 2003 SC 2418

of 1997 and defendants in O.S.Nos.1323 and 1325 of 1997.

36.

In the result, all these three appeal suits are dismissed confirming the common judgment and decree dated 13.09.2002 in O.S.Nos.1323, 1325 and 890 of 1997 on the file of the VII Senior Civil Judge, City Civil Court at Hyderabad in its entirety. However, in the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous applications, if any pending in these appeals, shall stand closed. _________________________________ A. VENKATESHWARA REDDY, J.

Date: 12.12.2022 Isn